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Christian preacher in the UK arrested for saying homosexuality is a sin

According to this story, a preacher in the UK was discussing religion with a passing woman and mentioned that, according to the Bible, homosexuality is a sin. He was then approached by a “homosexual police community support officer” and he repeated that homosexuality is a sin. He was arrested.

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About Geoff B.

Geoff B graduated from Stanford University (class of 1985) and worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. He has held many callings in the Church, but his favorite calling is father and husband. Geoff is active in martial arts and loves hiking and skiing. Geoff has five children and lives in Colorado.

56 thoughts on “Christian preacher in the UK arrested for saying homosexuality is a sin”

Police officers are alleging that he made the remark in a voice loud enough to be overheard by others and have charged him with using abusive or insulting language, contrary to the Public Order Act.

Christian campaigners have expressed alarm that the Public Order Act, introduced in 1986 to tackle violent rioters and football hooligans, is being used to curb religious free speech.

Christians say they are worried about having their religious freedoms taken away and religious liberals use the counter argument (at least in America) that they will still have the choice as to which marriages to recognize or not recognize so their religious freedoms won’t be curbed.

I think things like this are what the religious liberals need to address if they want sincere dialog.

I actually think that without the 1st amendment the US would be heading in this direction. I could see liberal judges though in a generation or 2 ruling that the first amendment does not protect “hatespeech”. So it could happen here as well at least theoretically.

It is worth pointing out that, especially with the current Supreme Court, there is no way saying you believe homosexuality is a sin will get you arrested in the U.S.

Having said that, SSM laws have created the “soft suppression” of speech in that it is definitely not politically correct to say, for example, that you believe homosexuality to be a sin. I could imagine that on some college campuses it could get you expelled or certainly affect your grades if you were to say it out loud.

It seems the Church is concerned that a logical extension of SSM laws would eventually be the suppression of religious liberty in ways similar to what we are seeing in the UK and elsewhere.

Sure, Bruce. But considering that “homosexuality is a sin” is not an academic position, but rather a moral and/or religious one, I fail to see under what circumstances one would articulate such a view at a university.

Christopher, I took several “recent history” courses when I was an undergrad in the early 1980s. History of the 60s and 70s, for example. I would imagine that there are “history of the 90s and 2000s” courses right now at many college campuses. Subject matter of the day: gay rights. Teacher says “everybody knows that same-sex marriage should be legal and it is bigoted and unChristian to claim it should not be.” Student says: “Actually, teacher, have you read 1 Corinthians or Leviticus. The Bible clearly says homosexuality is a sin.” I would be willing to bet you a hamburger that those kinds of conversations could take place all the time if it were not for political correctness. In this example, the student stays silent.

Real-life example from 10 years ago. My wife was studying anthropology at CSU. She had many different teachers say, in different ways, that homosexuality is completely accepted in many different cultures and it is only our retrograde, unChristian and homophobic culture that does not accept the normality of homosexuality, and we should all accept it, and there is no way it is a sin, and to claim so is bigoted, intolerant, etc. My wife mostly kept quiet as most students do.

Look, I am not claiming that students should go around telling everybody what a sin homosexuality is. I don’t do this in my personal life or on this blog. Personally, my opinion is that somebody who needs to talk about other peoples’ sins all the time has a beam in his own eye that he needs to take care of.

My point is simply that political correctness does suppress speech. The First Amendment is not intended to protect just pleasant speech — it is intended to protect all kinds of speech, including some I personally don’t approve of.

Geoff, there is a difference between saying “many people believe that homosexuality is a sin” (a statement that can easily be empirically-tested and demonstrated and is not in and of itself offensive) and saying “homosexuality is a sin” (a point that can not be proved beyond one’s personal and highly-subjective beliefs and is indeed offensive to a number of people).

You’re right to rely upon free speech and not academic freedom to make the argument at hand–the two are not the same thing.

Ironically, I’m off now to my reading seminar on modern U.S. history, where last week we discussed the emergence of the New Right from the 1960s to the present. Among other things, we talked about the need as historians to take the Right seriously as a social and political movement and not dismiss them simply because one may personally disagree with their cause. I specifically mentioned the religious right’s emphasis on moral issues and stressed that such views need to be taken seriously as ideas. A fellow grad student, who happens to be a very politically and socially conservative southern Baptist, backed me up, noting that “whether we agree with the views of the religious right or not, we need to seek to understand the underlying belief systems of those individuals” in order to properly make sense of the movement. Every student in the classroom agreed, as did the professor, an outspoken, politically active lesbian.

I am of the view that academia is the “last bastion” of both racism and deep intolerance in our society. Your comment has confirmed for me anyway that deep intolerance is indeed alive and well in academia.

It’s really funny that you piped up like that on this thread on this topic.

Cheers. I now have my next post on Mormon Mentality I think I will title it “The last bastion of both racism and religious intolerance in America” and I will point specifically at the Ivy leagues for discrimination against whites and asians and academia in general for anti-christian bias.

Christopher, good to see you are trying to understand the religious right, even if you may disagree with it. I have told this story before, but it worth repeating here: when I was undergoing my conversion from agnostic to Mormon, I went to many churches. I had a lot of friends (and still do) who were evangelicals — Baptists mostly. They were the most supportive and tolerant people I have known. When I told them I had decided to be baptized as a Mormon, they were extremely supportive and said things to the effect of, “anything that draws you closer to Jesus is a good thing.”

Regarding politics, I have actually drawn away from the viewpoint of the religious right in the last few years. I don’t believe life begins at conception, so I am not technically 100 percent pro-life. I think the emphasis on social issues turns off people who might otherwise agree with the No. 1 issue, which is growth in the size of government. So, when I listen to your typical Huckabee supporter, I am not necessarily that sympathetic. But having said that, I would point out that if you actually talk to these people, get to know them and hear them out, the number one thing you learn is that they feel like their way of life is under attack. Theirs is primarily a defensive movement. They mostly want to be left alone, not spread their own beliefs far and wide. A good example is the home school movement, which is filled with religious conservatives. They take their kids out of the public schools (something I haven’t done and don’t plan on doing) primarily as a defensive measure. They aren’t interested in changing everybody else, but they want the freedom to live as they please.

So, the view that religious conservatives are all bigots out to persecute gays is a bit outdated in my experience. Most of them could care less what people do on their own — their concern is maintaining their own religious freedom, which they feel is under attack.

Christopher, I think this might be the first time in my life that a comment put me at a loss for words for a while. I’m still going back and trying to figure out where I (hopefully) misunderstood what you said. Because what I thought you said is just not good.

Here was the original comment that started this (from Geoff): “…that you believe homosexuality to be a sin. I could imagine that on some college campuses it could get you expelled or certainly affect your grades if you were to say it out loud.”

I admit, prior to this point, I thought “academic positions” were jobs you took at a university. So I hopefully don’t understand what you mean by “academic positions.” In context, it seems like you’re saying that there is something called a “moral position” that is ban-able from a campus while anything that fits the definition of an “academic position” can’t be. Absent a definition of what an academic position is, and why said definition bans certain (but apparently not all) moral opinions, it’s hard for me to comment on this.

So what is an academic position? And why would, here in America where we have freedom of speech — and on a college campus that presumably values academic freedom — would we ban any opinion?

I strongly disagree with Geoff over the issue of “soft suppression.” I think “soft suppression” is a primary means of putting pressure on society to hold to moral standards and that we’d be lost without it. So I am actually in favor of soft suppression. Both liberals and conservatives utilize it for their own means and cry foul when used on them. But then I imagine how bad society would be if we couldn’t, for example, soft suppress racial prejudice. (We don’t want to legally suppress it, of course. That would be very very bad.)

But in context, it does not seem like you are talking about soft suppressionIt seems like you are saying a person should not be allowed to express their religious beliefs on college campuses at all, if they go against other people’s held moral beliefs. And perhaps I read in too much here, but by not taking a stance against expelling someone that does, or giving them bad grades, you (hopefully inadvertently) left me with the impression that you agree with that.

But what about a Christian club on campus (official or unofficial)? What about in a class on religion talking about Christian ethics? What about someone sharing “data” (or even anecdotal evidence) on why he/she sincerely (even if misguidedly) believes homosexuality is bad for people. Even if it’s all just silliness we need to allow such opinions, if only so that we can disprove those opinions. But never never ban them.

I can think of *so many* situations where sharing an opposing moral viewpoint can and should come up if the person is willing to deal with the negative opinions of others. And under no circumstances would I ever claim that certain topics are off limits because they are “moral ones” rather than “academic ones.” Personally, I would have thought *everything* is an academic position by definition. How can something *not* be a legitimate point of discussion in academics?

For that matter, it seems to me that your approach misses the point that human beings always put things into a moral context. It’s who and what we are. Agree or disagree, a university that intentionally suppressed some religious views on the grounds that “it hurts feelings” is failing to address reality and failing to give it’s students the academic education they need to deal with the real world.

And besides, I think Geoff has a point here. If it’s okay to have a teacher in a class implicitly or explicitly take a stance on the morality of homosexuality, then why is it illegal for a conservative religious person to do so to counter it in the same classroom?

You go on to say that “many people believe that homosexuality is a sin” is acceptable to say. So apparently you believe its okay to discuss it at a distance. One just can’t admit “oh, and by the way, I happen to be one of them so I have a personal stake in this.” I’m so confused. It makes no sense at all.

It really does sound like you are saying that it’s acceptable for universities to ban certain opinions on campus. Worse yet, it sounds like you’re saying that the determining factor of what can and can’t be banned should be determined by majority rules. (In this case, following along the lines of a presumed to be liberal university point of view.)

Seriously, Christopher, I am probably drastically misreading you. I really really hope so. Because if I’m not, you just advocated the existence of thought police on university campuses — possibly even enforced by rules/laws. I knew conservatives have been complaining about this for years, but I seriously thought they were nuts. (Or rather, I thought they were confusing “soft suppression” for “legal suppression.”)

But after your comment, I’m in serious doubt now. Please buddy, throw me a bone here. Don’t let me be proven this wrong about liberals. I’ve always defended the liberal position to conservatives (ask the guys as Jr. G. if you don’t believe me.) I never, even for a moment, believed liberals were the thought police that conservatives make them out to be. But your comment has caused me to question that assumption. At a minimum, I feel defensive because your comment makes my defense of liberals look really misinformed. (See bbell’s comment as an example what what I mean.)

Because, at the moment, it’s like I woke up today and found that I had crossed over into some alternate reality where Rush Limbaugh is actually dead right about some things. I don’t like this reality and if this is the reality I’ve always lived in, I prefer the delusion I had yesterday.

I’m really hoping that you were just making an off comment and missed the context by mistake. I’m hoping that what you really meant to say was “Yes, of course it’s acceptable to share any opinion you want on college campuses. But then people should be able to express their negative opinions of your opinions equally freely and you should expect some people to be hurt and offended and maybe even not like you much after it.” Because I could get behind such a comment and I could agree with it.

But I can’t agree with what you actually wrote, especially as a response to Geoff’s comment. It downright scary the way it comes across.

So hopefully you will take some time to clarify what you really meant here and we can clear this up. I am not trying to attack you. I hope you see that. I am (admittedly forcefully) trying to help you understand what your comment sounds like and trying to give you a chance to explain yourself better.

I teach freshman English, and I know what Christopher means by “academic position.” You can reason morally in college by showing cause and effect, but it doesn’t work to take positions such as “God said homosexuality is a sin” because there are no academic tools for assessing or arguing such a position. In academia, you have to take positions that others can agree and/or disagree with based on empirical evidence, sound logic, etc. Otherwise you are not participating in the conversation in a productive way. Even if you try to explain why God says something, the fact that you are talking about God is fundamentally nonacademic, by definition. People at BYU can do it, I suppose, but BYU is a weird religious/academic hybrid, not pure academic.

There is a fundamental rift in the world views of academia and religion, and the two are irreconcilable, in my opinion. Pure academia glorifies humanity as the ultimate authority, while religion glorifies God. What’s alarming to me is not the fact that God is not an academic subject and does not belong on an academically free campus but that the general society is now listening far more to academics than to religionists. I believe general society should give each side equal respect and consideration, so everyone can come to their own conclusions, rather than letting the academic world view crowd out the religious side and turn society totally secular.

What you are saying makes sense to me and might help clarify Christopher’s statements better. While I’m against any banning at all of free expression of opinions on a publically owned college campus (I feel differently about privately owned), I *could* get behind the idea that if you are going to bring up an opinion, you are expected to do your best to back it up with the data you are deriving it from and not simply saying “God says it wrong, so I need no evidence.”

Maybe this is precisely what Christopher meant, and he just made the mistake of phrasing it poorly in a poor context so that it came across like Thought Police.

However, even then, I see no reason at all that this would preclude a serious discussion about the morality of anything — including homosexual activity – even if it offends people. It merely defines the rules of the game so that there has to be some level of substance behind the discussion.

Maybe part of the problem is that I read Geoff as discussing morality and ethics (that’s what “sin” means to a religious person) whereas Christopher saw it as explicitly religious in nature but without supporting data. Maybe Christopher saw Geoff as advocating a naive statement like “God says it’s wrong so it is” as valid academic debate by itself. I don’t feel this is what Geoff said at all, but if that is what Christopher thought he said, I think I could understand his comments better.

“I could see liberal judges though in a generation or 2 ruling that the first amendment does not protect “hatespeech”.”

Really? Do you have any precedent to support this? Anything at all? Because so far, the Supreme Court has been pretty liberal (small “L”) in determining what qualifies as protected speech under the First Amendment. It would take some pretty groundbreaking overrulings to manifest your doomsday scenario.

Christopher Bigelow, I understand your point, but, if you will excuse me, it is just a fancy way of getting around the issue.

All discussions of cultural issues must eventually deal with the issue of “right and wrong.” It must be a factor, even in an academic setting. Is China’s one child policy a good social policy from the perspectives of sociology, anthropology, political science? What does it have to do with China’s history and customs? At the end end of the day such discussions are meaningless without discussing the issue of morality, ie, is is morally right to force people to be sterilized and have abortions? And if you are going to discuss morality, you have to have a basis for your morality, ie, what makes it right or wrong?

The law is meaningless without discussions of morality. What is the basis for making something illegal? Well, illegality is based on a society deciding something is “wrong.” You cannot decide if something is wrong without entering into the field of religion (which is why the 10 commandments are at the Supreme Court).

For millennia, society felt that homosexuality was wrong. There are many people who feel that the 10 commandments’ prohibition on adultery is a prohibition on homosexuality and all sexual acts outside of marriage. Personally, I am not sure about this issue, and again as I say above I don’t like to go around telling people not to sin because I’m too busy worrying about my own sins, to be quite frank. But having said that, anybody who claims that morality is absent in academic discussions is ignoring reality. Morality is everywhere in academic discussions, it’s just that people like to claim they are having tolerant “morality-free” discussions when they are just discussing morality in a different way with different terms. Are you going to tell me that all of those political scientists discussing the health care bill did not consider morality when deciding that it was “wrong” or “unfair” for 30 million-plus Americans not to have health insurance? Of course they did.

Oh, I think morality is different from religion. You can and should make all kinds of moral/ethical arguments in academia . . . if you use academic discourse. But the minute you say a religious word like “sin,” you bring God into it. But you can say, “I think homosexual behavior is bad for individuals and society for these logical, empirical reasons,” that works. You just can’t (productively) bring God into the academy, even indirectly. You gotta do it in ways that don’t “stink” of religion, even if–especially if–deep down your primary reasons are religious.

I think religious people ought to be arguing on morals and ethics in the academy, but by earning their positions academically, not by relying on any kind of religious (god/faith/scripture/etc.) reasons, because the academy doesn’t recognize those as valid academic discourse.

Whenever my students try to bring in an outside authority that is not academic, I caution them because it holds little or no weight, whether it’s that homosexuality is bad because a) god said so (including scripture/prophet), b) my parents said so, c) my community says so, d) tradition says so, e) my heart/spirit tells me so, etc. Academics, in general, recognize only the authority of the human mind, so if you can’t make your point in that way, you’re simply going to fall flat in all freely, purely academic situations.

(Not sure why I’m going on like this, except our department is debating this issue right now, how to handle Utah students who don’t understand these distinctions…)

Maybe this is precisely what Christopher meant, and he just made the mistake of phrasing it poorly in a poor context so that it came across like Thought Police.

Bruce, suffice it to say that you did indeed misread my statement. And considering that others had no problem whatsoever deciphering what I meant by “academic position,” I would suggest that your misreading has less to do with my poor phrasing in a poor context than it does with your own reading abilities.

If so, the the authors of of both Leviticus and Corinthians and should have been able to come up with more common words whose meanings were explicit, rather than the pair they chose, which have left scholars scratching their heads in confusion ever since. Paul, specifically, in spite of the wide variety of word available to him to describe the presumed behaviours he decried, coined a new term that no one understands. The Levitical comment has similar problems.

I feel bad that the whole conservative / liberal war is handled in such a nasty way like this so often. It’s so unnecessary and does nothing to bridge the divide. Indeed, I honestly feel the nastiness *is* the divide.

I realize now that I was wasting my time trying to communicate. Instead I got an insult but no sincere attempt on your part to explain your position. *Sigh*

What does Geoff’s comment about society having once believed homosexuality to be immoral got to do with what Greek word Paul used in the Bible? And what in the world does Jacob’s polygamous marriage practices have to do with anything whatsoever? And how does any of this relate in the slightest to the topic being discussed?

Bruce, I didn’t think an explanation was necessary in light of Christopher Bigelow’s comments that seemed to clarify what was meant by “academic position” rather well. And before you start bemoaning the conservative/liberal divide, you might want to reread the comments and see who first (and exclusively) interjected that divide into this discussion. That was you.

I disagree that I only asked about the meaning of “academic position” nor that you have clarified your own point of view. For one thing, Chris Bigelow’s explanation only makes sense of your comments if I assume you misunderstood what Geoff originally meant.

I put a lot of time into my questions to you, carefully thinking out different ways what you said in context could have been misunderstood by me. I wish you had shown me the same courtesy in return.

If I had been attacking you, opening myself up to easy potshots about not understanding a phrase (which I openly admitted I didn’t understand) was hardly the best way for me to go about it. This isn’t a contest, Christopher, it’s a discussion.

I don’t really believe this discussion can recover at this point, nor can your original point. In any case, I’m done here.

Uh, Bruce. It’s a blog. I’m under no obligation to expend the same effort you apparently put into your lengthy exposé of liberal academia based on your own misreading of my comments.

As for the rest of your comment … since I never suggested that it was illegal for conservative viewpoints (or moral ones, for that matter) to be said on a college campus, I don’t have much to say. Jeez, I never brought up the issue of legality at all. You simply used my comments as a jumping off point to prop up a straw man of your own making and then proceed to (in your own thinking) sufficiently tear it down. I have nothing to respond to since most of what you said has absolutely nothing to do with anything I said. You have, several times now, misread what I said, then misrepresented me, and the whole time apparently convinced yourself otherwise.

“Really? Do you have any precedent to support this? Anything at all? Because so far, the Supreme Court has been pretty liberal (small “L”) in determining what qualifies as protected speech under the First Amendment. It would take some pretty groundbreaking overrulings to manifest your doomsday scenario.”

What are you referencing, Vader? Because Citizen’s United, SCOTUS’s most recent interpretation of campaign-finance laws, decimated McCain-Feingold.

In any event, I think Citizen’s United supports my position earlier. The Supreme Court takes a very expansive view of what constitutes “speech” under the First Amendment; even multi-billion dollar corporations are “persons” capable of political speech.

Many universities in fact do operate as if the 1st amendment is inoperable on campus. Google campus speech codes. Here is a good example. http://www.thefire.org/article/5063.html In court campus speech codes always get thrown out but that does not stop universities from enacting them anyway. Man I just found another area where academia is “the last bastion of repression” Free Speech. I just hit a triple. Racism, anti-christian bias, and now free speech.

I would say for now that the SC is fiercely protective of the 1st amendment. However as mores change in society all it takes is 5 justices seeped in anti-christian bias and that could change

Bbell, the argument used by SSM supporters on this issue is nonsensical, imho. Here’s what they often say: “Don’t worry about free speech issues and religion because we have the First Amendment, so religious expression will always be protected.” At the same time, many of these very same people support judges who support speech codes on campus, “hate crimes” legislation and who see broad exemptions for applications of the 1st Amendment. So, on one hand they are saying, “don’t worry, your free speech and religious rights will be protected” and on the other they are supporting the very judges who will diminish your free speech and religious rights.

So, at the end of the day you can only assume that it is a matter of time until we get to a situation where pastors are thrown in jail for quoting the Bible on homosexuality. In such an environment, would “discriminatory” practices like male-female marriages (and no SSM marriages) at temples continue to be allowed? It is an open question.

To be clear, we are way far away from a British situation in the U.S. I am not claiming we are even close to it yet. I am saying, however, that there are important elements of society that are moving in that direction in the name of political correctness.

Thanks for the articles. But again, I don’t see in them any indication that this type of religious speech is less likely to be protected by the Supreme Court.

Sure, there are factions who claim that religious speech deserves less protection. For example, in the line of recent cases in which the Court allowed religious groups to meet on college and high school campuses (Widmar v. Vincent, Good News Club, etc.), Stevens himself wrote some pretty awful dissents that essentially relegated religious speech to the fringes of the First Amendment’s protection. But, gratefully, those views have been categorically rejected by the Supreme Court. It would take some groundbreaking overrulings to begin a trend in the opposite direction. And given the composition of the Court for the foreseeable future, I just don’t see that happening.

If the religious right is so worried about what “activist” judges are going to do with religious freedoms, they need to take a hard look at the poster-boy for the conservative judicial movement, Antonin Scalia. That man, in Employment Division v. Smith, did more to eviscerate the religious protections of the First Amendment than any “liberal” judge in the past 30 years. But, that’s a discussion for a different day.

Arresting someone because of their stated views on the moral status of homosexual behavior is about the most salient example of “liberal fascism” one could possibly conceive.

The thing I am curious about though is why the British electorate doesn’t seem to have inherited a strong conception of the virtue of freedom of speech and religion, in a country that practically invented the idea. What happened?

Mark D, to take your question seriously, we need to realize that, even with the First Amendment, there are times society agrees that free speech should be limited. There is the obvious “shouting fire in a crowded theater” example, but how about saying, “hey, there’s a gay guy — somebody should show him a lesson” to a rowdy crowd? More interestingly, we have first amendment exemptions for child pornography.

So, clearly there are times when “decency” and “speech intended to incite violence” win out over free speech. In the UK, and a lesser extent Canada, the interpretation of “decency” and “violent speech” have been expanded to include “hate speech” and that has been expanded to include anything that offends minority groups. You have police in the UK specifically looking for offensive speech (ie, the homosexual liaison to the police in this case).

Thank God for the 1st amendment and for a Supreme Court that actually enforces it.

In the United States though, it is not so much “limited” as subject to reasonable regulations in time, place, and manner. You can incite to violence all you want, for example, as long as there is not an imminent danger of that violence being carried out. There are no prohibited points of view.

As soon as you start prohibiting the expression of points of view, you have established a state religion enforceable at the point of a gun. That usually doesn’t end well. Ask Michael Servetus.

Persecuted Mormon,
You’re last paragraph of your last comment is spot-on.
I’d like to see LDS conservatives address and discuss that Supreme Court decision. Not at all friendly to religion (especially minority religions like ours) and just three of the most liberal members of the Supreme Court dissented. All the Supreme Court conservatives joined with the majority opinion in restricting religious rights. The church itself wasn’t happy about the decision, wrote an amicus brief, etc.

Fewer religious rights, brought to you by the conservatives on the Supreme Court. Employment Division v. Smith.

I’m not really qualified to comment, but at first glance it seems strange to compare a religion based on peyote with other, more mainline religions. But again, I never went to law school and I’m sure there are a lot of ramifications of which I’m not aware. Please be gentle in your answers.

“But Oregon’s ban on the possession of peyote is not a law specifically aimed at a physical act engaged in for a religious reason. Rather, it is a law that applies to everyone who might possess peyote, for whatever reason—a “neutral law of general applicability,” in the Court’s phrasing. The Court characterized Smith’s and Black’s argument as an attempt to use their religious motivation to use peyote in order to place themselves beyond the reach of Oregon’s neutral, generally applicable ban on the possession of peyote. The Court held that the First Amendment’s protection of the “free exercise” of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Thus, the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes.”

Before Employment Division v. Smith, the Court used the “strict scrutiny” standard of review to analyze free exercise claims. This meant that if the plaintiff could demonstrate that a law “substantially burdened” her free exercise of religion, then the Court required the State to show a “compelling interest” in restricting her free exercise rights. Moreover, the State had to show that its actions were “narrowly tailored” to serve those interests. Suffice it to say, the State rarely prevails when strict scrutiny is used. This standard was very protective of the First Amendment’s free exercise guarantees. What’s more, it was created by some of the Court’s most liberal justices, including Brennan.

But Employment Division v. Smith changed all that. Scalia altered the analysis and held that even if the plaintiff shows that her free exercise rights are substantially burdened, the law is constitutional so long as it is “neutral and generally applicable.” So, the peyote smokers’ free exercise rights weren’t violated because the laws applied to everybody. This new test dramatically lightened the burden on the State in a free exercise analysis. As such, the State almost always prevails on a free exercise claim.

Smith effectively overruled three decades of Free Exercise jurisprudence. What’s more, the Court drastically changed the law sua sponte. Abandoning the “strict scrutiny” test wasn’t even a question before the Court! Smith was “judicial activism” at its finest. Everybody thought that the court would simply find that even though the plaintiffs’ free exercise rights were burdened, the State had a compelling interest in regulating drug trade.

Everybody was shocked when Smith came down. Civil libertarians and the religious right came together to pass legislation attempting to statutorily mandate the “strict scrutiny” standard of review. The Religious Freedom Restoration Act (RFRA), which passed the House unanimously, and passed the Senate 97 to 3, was Congress’ attempt to overturn Smith.

The Court had the last word, though, and held that RFRA was unconstitutional as applied to the States. But the point is that the religious right and civil libertarians were ticked off. And justifiably so. The conservative justices on the Court eviscerated the First Amendment’s free exercise guarantees.

So my point is that before people complain about what “liberal” judges are doing to the First Amendment’s religion clauses, they need to focus on the Court’s conservative wing.

Again, I am not an expert, but in a general sense my perception is that there are two kinds of “conservative” judges when it comes to the First Amendment. There are “libertarian” conservatives who try their hardest to protect the First Amendment at all costs, and there are “traditional” conservatives who tend to favor exemptions to the First Amendment that offend them, like flag burning and weird religions. I would tend more to the libertarian side personally because it seems to me you can’t go wrong in the long run. I don’t know if you agree with my layman’s analysis, but that’s kind of how I see it.

Certainly, part of the problem is that none of these judges actually belong to a minority religion.

I hope our current and future presidents pick Supreme Court judges who will more strongly support the First Amendment. And I hope we never become like Europe in that regard (I love Europe, but they don’t enjoy the same First Amendment rights we do). I hope I never see legislation here that punishes someone for saying homosexuality is wrong, or forbidding women from wearing certain kinds of religious clothing.

Tim, one of the things you learn when you delve into this issue is that it’s never as simple as you think it is.

If the conservative Supremes were all “traditional” conservatives you would think they would agree that videos involving the crushing of small kittens for pleasure (how sick is that!) are definitely not protected speech. But yet we have only one conservative on the court who feels that way, Alito.